Court of Appeals of Texas, Fifth District, Dallas
JOHN P. HAGAN, Appellant
JAMES E. PENNINGTON, Appellee
Appeal from the County Court at Law No. 5 Collin County,
Texas, Trial Court Cause No. 005-00175-2017
Justices Bridges, Partida-Kipness, and Carlyle.
L. BRIDGES JUSTICE.
underlying proceedings of this appeal involve appellee James
E. Pennington's breach of contract claim against
appellant John P. Hagan and Hagan's subsequent legal
malpractice counterclaim against Pennington. The trial court
granted two summary judgments in favor of Pennington. A jury
subsequently awarded Pennington $62, 628 in attorney's
fees for litigating his breach of contract claim. Hagan
raises seven issues on appeal. He challenges the jury's
$62, 628 award of attorney's fees. He further challenges
the trial court (1) granting the summary judgments, (2)
denying a motion for new trial or motion for judgment
notwithstanding the verdict, (3) denying an in camera motion
for inspection of documents, (4) denying a motion to compel
documents, (5) and failing to award post-judgment interest.
We affirm the trial court's judgment.
early June of 2014, Hagan entered into a legal services
agreement with Pennington in which Pennington agreed to
represent Hagan "in a lawsuit and/or arbitration against
[Hagan's] former partner, Gary D. Sarles, arising from
Sarles' breach of an Income Partner Agreement between
[Hagan] and Sarles, and a related matter involving a pending
lawsuit/arbitration against Sarles' office manager, Kelly
Wilcox." Hagan agreed to pay Pennington $400 an hour for
his services. Hagan paid for some, but not all, of
Pennington's legal fees. Specifically, he paid $45, 120,
but refused to pay the $17, 320 Pennington billed for
preparing and representing Hagan in the arbitration
Hagan refused to pay the demanded fees, Pennington withdrew
as his attorney. His withdrawal occurred about a month before
the final arbitration hearing. The final arbitration award
provided, among other things, that Sarles breached the Income
Partner Agreement and awarded Hagan attorney's fees
pursuant to civil practice and remedies code section 38.001.
Thus, despite Pennington withdrawing, Hagan achieved some
success in arbitration.
subsequently filed a breach of contract lawsuit to recover
the $17, 320 in unpaid attorney's fees. Hagan answered
and filed a legal malpractice counterclaim. Hagan alleged
Pennington breached his duty of care by failing to advise him
that a provision in the arbitration agreement prohibited the
recovery of pro se attorney fees, meaning Hagan could not
recover the $74, 707 in damages he allegedly suffered as a
result of his decrease in billable hours during the time he
worked pro se on the arbitration.
filed a motion for summary judgment on Hagan's legal
malpractice counterclaim, which the trial court granted.
Pennington filed a second motion for summary judgment on his
attorney's fees in the underlying arbitration, which the
trial court also granted. The only remaining issue for trial
was the reasonableness and necessity of Pennington's fees
in pursuing his breach of contract claim in the trial court
litigation. Pennington sought $162, 000 in attorney's
fees for pursuing his $17, 320 breach of contract claim.
two-day trial, a jury awarded Pennington $62, 628. Hagan
filed a motion for new trial and a judgment notwithstanding
the verdict, which the trial court denied. The court's
second amended final judgment memorialized the prior $17, 320
award for legal services in the underlying arbitration and
that Hagan take nothing on his counterclaim and third-party
petition for legal malpractice. It awarded $1, 914 in
sanctions against Pennington related to a gag order, which is
not subject of this appeal. The trial court further awarded
Pennington his appellate attorney's fees and
post-judgment interest. Hagan filed a second motion for new
trial and judgment notwithstanding the verdict, which the
trial court again denied. This appeal followed.
Judgment: Legal Malpractice
second issue, Hagan argues the trial court erred by granting
Pennington's first motion for summary judgment on his
legal malpractice counterclaim because the court disregarded
expert testimony establishing Pennington owed Hagan a
heightened duty of care, which Pennington breached thereby
causing Hagan damages. Pennington responds the trial court
properly granted summary judgment on traditional grounds
because Hagan incorrectly interprets the relationship between
the Civil Rights Attorney's Fee Award Act of 1976 and
section 38.001 of the civil practice and remedies code in
awarding attorney's fees. Pennington also contends the
trial properly granted a no-evidence summary judgment because
Hagan failed to timely designate his expert witness to
support his arguments.
standards of review for traditional and no-evidence summary
judgments are well known. See Timpte Indus., Inc. v.
Gish, 286 S.W.3d 306, 310 (Tex. 2009). In a traditional
motion for summary judgment, the movant has the burden to
demonstrate that no genuine issue of material fact exists,
and it is entitled to judgment as a matter of law.
Tex.R.Civ.P. 166a(c). We review a no-evidence summary
judgment under the same legal sufficiency standard used to
review a directed verdict. Tex.R.Civ.P. 166a(i);
Gish, 286 S.W.3d at 310. To defeat a no-evidence
summary judgment, the nonmovant is required to produce
evidence that raises a genuine issue of material fact on each
challenged element of its claim. Gish, 286 S.W.3d at
310; see also Tex. R. Civ. P. 166a(i).
reviewing both a traditional and no-evidence summary
judgment, we consider the evidence in the light most
favorable to the nonmovant. Smith v. O'Donnell,
288 S.W.3d 417, 424 (Tex. 2009). We credit evidence favorable
to the nonmovant if reasonable jurors could, and we disregard
evidence contrary to the nonmovant unless reasonable jurors
could not. Gish, 286 S.W.3d at 310.
party files a hybrid summary judgment motion on both
no-evidence and traditional grounds, we generally first
review the trial court's judgment under the no-evidence
standard of review. Rico v. L-3 Commc'ns Corp.,
420 S.W.3d 431, 439 (Tex. App.-Dallas 2014, no pet.). Should
we determine summary judgment was appropriate under the
no-evidence standard, we need not address issues related to
the traditional summary judgment motion. Id.
decide whether Pennington was entitled to a no-evidence
summary judgment, we must consider what evidence, if any, the
trial court considered in making its ruling. Hagan argues the
trial court ignored controverting expert testimony of Tom C.
Clark. Pennington argues a no-evidence summary judgment was
appropriate because Hagan failed to timely designate Clark or
secure a ruling on his motion to designate a late expert
witness. Hagan responds he timely designated Clark because on
April 7, 2017, the trial court moved the discovery deadline,
thereby making his February 22, 2017 designation of Clark
timely pursuant to Texas Rule of Civil Procedure 195.2(a).
See Tex. R. Civ. P. 195.2(a) (expert designations
due ninety days before the end of discovery).
seemingly acknowledging he missed the deadline for
designating an expert witness, filed his motion for leave to
file late designation of expert witnesses on February 22,
2017. In the motion, he sought to designate Clark to testify
about Pennington's failure to exercise reasonable care in
the underlying breach of contract case. Hagan argued
Pennington would not be unfairly prejudiced or unfairly
surprised because there was no trial setting at that time,
and Pennington would have ample time to depose Clark.
filed his first hybrid motion for summary judgment on
February 28, 2017 and argued the trial court should dismiss
Hagan's counterclaim and third party claim because there
was no evidence supporting essential elements of a legal
malpractice claim, and Hagan's claim failed as a matter
of law because Texas law allows for recovery of pro se
April 7, 2017, the trial court, "having considered the
motion, response, and evidence filed with the Court,"
granted summary judgment in favor of Pennington on
Hagan's counterclaim for malpractice/negligence and
ordered Hagan take nothing "on his counterclaim or his
third party petition." The trial court did not specify
the grounds on which it granted summary judgment. It also did
not indicate it granted Hagan leave to file his expert
designation of Clark.
two months later, on June 6, 2017, Hagan filed a motion to
reconsider the trial court's first summary judgment
order. In the motion, he argued the trial court erred in
granting the motion for summary judgment by considering
Pennington's new (and untimely) evidence and by
considering Pennington's new arguments raised in his
reply to Hagan's response to summary judgment. Hagan
again requested leave to submit the Declaration of Expert Tom
Clark on the issue of malpractice. Hagan asked the court to
reconsider its summary judgment ruling and allow him to file
his sur-reply, in which he included the expert Declaration of
Tom Clark on Negligence/Malpractice, among other attached
6, 2017, the trial court held a hearing on Hagan's motion
for reconsideration. At the conclusion of the hearing, the
court stated, "In an abundance of caution, I am going to
grant the motion to reconsider and allow the surreply."
The trial court did not indicate it was considering the
evidence attached to the sur-reply or the expert Declaration
of Tom Clark. The written order states, "The Court,
after considering said Motion, Pennington's Response, the
argument of counsel, and the case law submitted by the
Parties, finds that Hagan's Motion for Reconsideration is
well-taken and should be, in all things, GRANTED."
17, 2017, the trial court signed another order in which it
again "ORDERED that Plaintiff's First Motion for
Summary Judgment is granted and that Defendant John Hagan
shall take nothing on his counterclaims or his third party
petition." The order stated the trial court made its
ruling "after careful and impartial consideration of
Plaintiff's First Motion for Summary judgment and
evidence attached thereto, Defendant's response and
evidence attached thereto, Plaintiff's reply,
Defendant's Sur-reply, Plaintiff's Objection to and
Motion to Strike the Untimely Declaration of Tom Clark,
Plaintiff's Evidentiary Objections to the Evidence
Attached to Defendant's Sur-reply, and all relevant case
authorities presented therein." Like the order granting
the motion for reconsideration, the July 17, 2017, order did
not indicate the trial court considered the evidence attached
to Hagan's sur-reply or the expert Declaration of Tom
motion to reconsider is filed after the rendition of summary
judgment, a trial court has discretion to consider the
grounds in the post-judgment motion and supporting proof and
reaffirm its summary judgment based on the entire record.
PNP Petroleum I, LP v. Taylor, 438 S.W.3d 723, 729
(Tex. App.-San Antonio 2014, pet. denied). The trial court
also has the discretion to simply deny a motion filed after
entry of summary judgment without considering its substance.
Id. "The efficacy of a post-summary judgment
motion to preserve a complaint for appellate review depends
upon whether the trial court affirmatively considers the new
grounds and proof as memorialized by a written order."
Id. (quoting Timothy Patton, Summary Judgments
in Texas § 7.06 (3d ed. 2012)). Thus, a trial
court may accept summary judgment evidence filed late, even
after summary judgment, as long as the court affirmatively
indicates in the record that it accepted or considered it.
Stephens v. Dolcefino, 126 S.W.3d 120, 133 (Tex.
App.-Houston [1st Dist.] 2003, pet. denied). But ordinarily,
when a motion for reconsideration is filed after a summary
judgment motion is heard and ruled upon, the trial court may
only consider the record as it existed before hearing the
motion for the first time. See Circle X Land & Cattle
Co. v. Mumford Ind. Sch. Dist., 325 S.W.3d 859, 863
(Tex. App. -Houston [14th Dist.] 2010, pet. denied).
example, an order stating, "The Court has considered the
motion for new trial and motion for reconsideration of
[Defendants] Traditional Motion for Summary Judgment filed by
[Plaintiff], any response, the arguments of counsel, and the
papers on file" did not affirmatively indicate the trial
court accepted or considered the later-filed evidence
attached to plaintiff's motions for new trial and
reconsideration. NMRO Holdings, LLC v. Williams, No.
01-16-00816-CV, 2017 WL 4782793, at *5 (Tex. App.-Houston
[1st Dist.] Oct. 24, 2017, no pet.) (mem. op.) (denying
motion for rehearing of motion for summary judgment). Thus,
the appellate court did not consider the evidence and was
limited in its review of the summary judgment to the
arguments and evidence presented in the initial summary
judgment. Id. But see also Circle X Land &
Cattle Co., 325 S.W.3d at 863 (appellate court reviewed
evidence attached to motion to reconsider where order
reflected affidavits and exhibits were considered by trial
Court reached a similar result in Morris v. Unified
Housing Foundation Inc., No. 05-13-01425-CV, 2015 WL
4985599, at *6 (Tex. App.-Dallas Aug. 21, 2015, no pet.)
(mem. op.). In that case, the plaintiffs filed a motion to
set aside a summary judgment and filed a supplement including
a letter from a psychologist. "Because that letter was
filed after the trial court granted summary judgment and
there is no indication that the trial court considered
it," we did not consider the letter when reviewing the
propriety of that judgment. Id. But see
Stephens, 126 S.W.3d at 134 (trial court verbally ruled
it would include the evidence offered at the hearing on the
motion to reconsider the summary judgment thereby
affirmatively indicating he accepted the evidence before
reaffirming its prior ruling).
neither the order granting Hagan's motion for
reconsideration of Pennington's first motion for summary
judgment nor the subsequent order reaffirming summary
judgment in Pennington's favor indicate the trial court
considered any evidence attached to Hagan's sur-reply. To
the extent Hagan argued during the July 6, 2017 hearing that
the court should allow him to file the sur-reply and consider
his expert's declaration, listening to arguments is not
an indication that a trial court considered evidence.
See, e.g., Soloman v. Whataburger Restaurants,
LLC, No. 04-17-00255-CV, 2018 WL 2121360, at *2
(Tex. App.-San Antonio May 9, 2018, no pet.) (mem. op.)
(trial court listening to arguments presented at a hearing on
a motion for new trial was not an affirmative indication the
trial court considered evidence attached to motion for new
trial); see also Wakefield v. Ayers, No.
01-14-00648-CV, 2016 WL 4536454, at *7 n.6 (Tex. App.-Houston
[1st Dist.] Aug. 30, 2016, no pet.) (mem. op.) (trial court
did not affirmatively indicate at hearing on a motion to
vacate summary judgment that it considered late-filed
affidavit in reaching its decision). Hagan did nothing to
insure that the trial court "affirmatively indicated on
the record" it considered the new
evidence. It was his burden to obtain a ruling on
his motion for leave to designate Clark and ensure the record
reflects either the trial court's ruling or refusal to
rule on his motion. Tex.R.App.P. 33.1; Cruz v. Schell,
Beene & Vaughn, L.L.P., No. 05-01-00565-CV, 2012 WL
3194074, at *3 (Tex. App.-Dallas Aug. 7, 2012, pet. denied)
extent Hagan argues his expert designation became timely when
the trial court moved the discovery deadline during the April
7, 2017 hearing, thereby eliminating his requirement to seek
leave of court, we are unpersuaded. As explained above, nothing
in the trial court's orders indicate it considered any
additional evidence after it granted the original motion for
summary judgment. As such, we find no basis in the record to
compel review of the evidence attached to Hagan's
sur-reply, which included Clark's expert declaration.
Accordingly, we are limited in our review of the evidence
presented in the initial summary judgment. See, e.g., PNP
Petroleum I, LP., 438 S.W.3d at 730; Circle X Land
& Cattle Co., 325 S.W.3d at 863.
Texas, a plaintiff in a legal malpractice suit is required to
present expert testimony regarding causation and the standard
of skill and care ordinarily exercised by an attorney.
See Cantu v. Horany, 195 S.W.3d 867, 873 (Tex.
App.-Dallas 2006, no pet.). Although Hagan filed a motion for
leave to designate Clark as an expert prior to Pennington
filing his no-evidence motion for summary judgment, Hagan
failed to obtain a ruling on his motion prior to filing his
response on March 29, 2017 or the trial court ruling on the
summary judgment on April 7, 2017. By not providing any
expert testimony in his summary judgment response, Hagan
failed to produce evidence raising a genuine issue of
material fact on each challenged element of his legal
malpractice cause of action. See Tex. R. Civ. P.
166a(i); see also Gish, 286 S.W.3d at 310.
Accordingly, the trial court properly granted
Pennington's no-evidence motion for summary judgment.
Because the trial court did not err by granting a no-evidence
summary judgment, we need not address Hagan's arguments
related to the traditional summary judgment motion.
Rico, 420 S.W.3d at 439.
Hagan argues the trial court erred by granting summary
judgment in favor of third party defendant, the Law Offices
of James E. Pennington, P.C. (JEP), because neither
Pennington nor JEP moved for summary judgment on Hagan's
third-party claims. He argues "that was error and Hagan
did not waive this argument by not objecting to the trial
court," citing Dillard v. NCNB Texas National
Bank, 815 S.W.2d 356, 359 (Tex. App.-Austin 1991, no
writ), disapproved of on other grounds by Amberboy v.
Societe de Banque Privee, 831 S.W.2d 793, 797 (Tex.
1992). In Dillard, the court determined "no
such objection was required in the present case in order to
preserve error" because "[w]e cannot sustain a
theory of waiver based upon a party's failure to object
to a matter concerning which his opponent's motion for
summary judgment is silent, and . . . without a
motion therefor to which a response could be
filed." Id. First, this is not a case in which
Pennington's motion was silent regarding his challenges
to Hagan's legal malpractice claim. His motion explained
Hagan's failure to produce any evidence supporting his
legal malpractice claim. Although Hagan filed his third party
petition against JEP after Pennington filed his motion for
summary judgment, Hagan did not raise any distinct complaints
against JEP that were not encompassed by Hagan's claim
against Pennington, individually.
importantly, the facts of this case indicate both parties
proceeded as if the trial court had in fact granted summary
judgment in favor of JEP. The trial court's April 7,
2017, order stated summary judgment "is hereby granted
against John Hagan on this counterclaim for
malpractice/negligence and that John Hagan shall take nothing
on his counterclaim or his third party
petition." The trial court's July 17, 2017
order included the same language that Hagan "take
nothing on his counterclaim or his third party
petition." Hagan never raised an objection or asked the
trial court to reconsider its ruling based on granting more
relief than Pennington requested.
July 21, 2017 hearing, Pennington's attorney commented,
"[the trial court has] already ruled on summary
judgment, and the only issue left for trial is now on
attorney's fees." The case then went to trial on
attorney's fees. The procedural posture of the case was
again memorialized, without objection, in the trial
court's second amended final judgment, in relevant part,
On August 28, 2017, the Court called this case for trial to
determine the last remaining issue in this case regarding the
amount of Plaintiff's attorney's fees in this lawsuit
(the Court previously disposed of all other issues by summary
judgment). . . .
The court has also previously ordered that Hagan shall take
nothing on his counterclaim and his third-party petition for
malpractice/professional negligence against Pennington and
Law Offices of James E. Pennington.
had repeated opportunities to raise his objection to the
trial court but did not. We do not find Dillard
persuasive under these facts. We overrule Hagan's first
Judgment: Breach of Contract
third issue, Hagan argues the trial court erred by granting
Pennington's second traditional motion for summary
judgment because he raised a genuine issue of material fact
on at least one element of Pennington's breach of
contract claim. Hagan relies on the "Second Declaration
of Tom Clark: Reasonableness and Necessity of Fees Sought by
James E. Pennington in the 2015 Arbitration" and other
evidence to raise a fact issue regarding the reasonableness
of attorney's fees. Pennington responds summary judgment
was proper because (1) Hagan failed to timely designate
Clark; (2) his later attempt to designate was ...